Veney v. Warden

Per Curiam. The petitioner, Samuel Veney, was convicted by a jury in the Circuit Court for Frederick County of murder in the first degree and on May 16, 1966, was sentenced by that court to death by the administration of lethal gas. We affirmed the judgment on October 15, 1968, in Veney v. State, 251 Md. 182 , 246 A. 2d 568 . The Supreme Court of the United States denied certiorari on April 1, 1969.

Veney v. Maryland, 394 U. S. 948 , 89 S. Ct. 1284 , 22 L.Ed.2d 482 . The petitioner on April 24, 1969, filed a petition for relief under the Post Conviction Procedure Act, Code (1957), Art. 27, § 645 A et seq., and later filed a supplemental petition on July 9, 1969. The Honorable John P. Moore, one of the judges of the Circuit Court for Mont ⁴³⁸ gomery County, was assigned that case pursuant to Maryland Rule 1202 b 1 and on November 14, 1969, held a hearing at which time the petitioner was represented by counsel, William R. Leckemby, Jr. Judge Moore considered eleven grounds for post conviction relief raised in a combination of the first petition of April 26, 1969, the supplemental petition of July 9, 1969, and a ground raised at the hearing. Judge Moore in a comprehensive and well reasoned Memorandum Opinion, filed February 24, 1970, carefully considered these eleven grounds and concluded that there was no ground upon which to grant post conviction relief.

Accordingly he passed an order dated February 20 and filed on February 24, 1970, denying the petition. The petitioner, pursuant to Art. 27, § 645-1 and Maryland Rule BK46 has applied to this Court for leave to appeal. We have carefully considered the grounds for relief asserted by the petitioner and, for the reasons set forth in Judge Moore’s Memorandum Opinion and Order, have concluded that leave to appeal should be denied. We direct the reporter to print as an appendix to this opinion Judge Moore’s Memorandum Opinion and Order filed February 24,1970.

Application denied. APPENDIX IN THE CIRCUIT COURT FOR FREDERICK COUNTY, MARYLAND SAMUEL VENEY VS. STATE OF MARYLAND Miscellaneous Petition No-3748 MEMORANDUM OPINION AND ORDER This is a petition for post conviction relief from a first degree murder conviction by a jury in Frederick County. The indictment against the petitioner was filed on Novem ⁴³⁹ ber 26, 1967, in the Circuit Court for Baltimore City.

The case was removed to Frederick County pursuant to his request for removal. A further motion for removal was denied on March 29, 1966, and the petitioner was convicted by a jury in the Circuit Court for Frederick County after a five day trial from April 11 to April 15, 1966 before Judge Dudley Digges, then Chief Judge of the Seventh Judicial Circuit (now Associate Judge of the Court of Appeals) and Judge Robert E. Clapp, Jr. On May 16, 1966 the Court sentenced the petitioner to death by the administration of lethal gas. The defendant appealed and the Court of Appeals affirmed the judgment unanimously on October 15, 1968. 251 Md. 182 , 246 A. 2d 568 . The instant petition for post conviction relief was filed with the Circuit Court for Frederick County on July 9, 1969.

The matter was assigned to this member of the Circuit Court for Montgomery County pursuant to Maryland Rule 1202 B, and a hearing on the petition was held in the Circuit Court for Frederick County on November 14, 1969. The underlying facts in the case were summarized by the Court of Appeals as follows: “At approximately 9:40 ?. M. on December 24, 1964, Luxie’s Liquor Store at 2002 Greenmount Avenue in Baltimore City was robbed. Several men were involved.

Appellant was identified as one of those men. Lt. Maskell of the Baltimore City Police Department arrived on the scene, accosted appellant, and was in the process of taking him into custody when one of the robbers shot Lt. Maskell.

Lt. Maskell was shot a second time. Appellant was identified as firing the second shot. Lt.

Maskell was not fatally wounded. The culprits escaped. Between 10:0Q and 11:0G P. M. appellant and others alleged to have been involved were at the home of appellant’s sister. Discussion of the incident took place.

Appellant, stated, T think I shot him, too.’ ⁴⁴⁰ Sgt. Jack Cooper was one of those searching for the participants in the robbery and shooting of Lt. Maskell. Sgt.

Cooper was seen at approximately 4:20 A. M. on December 25 by fellow officers. A few minutes later shots were heard from the direction in which Sgt. Cooper had gone. He was found fatally wounded near his police car, lying across an alley, face down, in an unconscious condition.

The dome light of his car was on. The driver’s door was open. The microphone of the radio was lying on the front seat. The motor vehicle operator’s license of appellant was picked up from the floor of the police car.

Just outside the car on the driver’s side under the open door were found the Social Security card, Selective Service card and birth certificate of appellant, together with a number of other papers connected with appellant.” 251 Md. at 185 , 246 A. 2d at 570 . Other important facts are that a verbal admission of shooting a police officer was overheard by a witness who identified the speaker’s voice as that of the petitioner; that the petitioner had been seen with a gun before and after the Cooper shooting; and lastly that his gun had been identified as the gun that had fatally wounded Sgt. Cooper and had wounded Lt. Maskell.

The petition of Samuel Veney of April 26, 1969, and his supplemental petition filed July 9, 1969, raise ten distinct grounds for post conviction relief, and an eleventh was raised at the hearing of November 14,1969: 1. That petitioner was denied due process of law when the jury was allowed to separate before the verdict. 2. That the petitioner, a male, is the victim of unconstitutional sex discrimination since the state for nearly thirty years allegedly has not sought the death penalty in the case of any female accused of crime. ⁴⁴¹ 3. That the petitioner was the victim of an attempted unlawful arrest. 4.

That his conviction was based on insufficient evidence. 5. That the denial of a change of venue from the Circuit Court for Frederick County was wrongful in light of the publicity which surrounded not only his trial but also the earlier trial in Frederick of his brother, Earl. 6. That the petitioner was denied his right to a speedy trial and held incommunicado without counsel. 7. That the petitioner was prejudiced by the introduction of testimony allegedly inadmissible because it (a) consisted of an unreliable voice identification, and (b) was allegedly coerced from the witness under threat of criminal prosecution. 8.

That the petitioner’s counsel failed to subpoena a defense witness whom petitioner wished to have testify on his behalf. 9. That petitioner was denied due process because the trial court allegedly refused to allow petitioner’s counsel to poll the jury following the reception of the jury’s verdict. 10. That the petitioner was the victim of a prejudicial in-court characterization by the state’s attorney. 11. That the petitioner was denied his right to present his own defense because he was not present at a conference in Chambers prior to the trial at which the ground rules for the conduct of the trial were established.

While contentions numbered seven, eight and ten merit more than routine consideration, it is the first point, the allegedly improper separation of the jury, that the petitioner most strenuously urged upon the Court. The jury was permitted to separate each day during the four day ⁴⁴² trial at the luncheon, dinner and overnight recesses, but was not allowed to do so after the case had been submitted to them for their deliberation upon a verdict. The case is 'therefore clearly within the scope of Maryland Code, Article 51, Section 22 (Supp. 1969), which provides: “The jurors sworn to try a criminal action may, at any time before the submission of the case to the jury, in the discretion of the court, be permitted to separate or may be kept in charge of proper officers.” The petitioner recognizes the applicability of this provision, but claims that the trial court abused its discretion in permitting the jury to separate in the face of allegedly harmful publicity to which the jurors in Frederick were ■claimed to be exposed during the periods of their separation. The petitioner makes no attempt to demonstrate actual prejudice in his case, but argues that prejudice must be presumed from the jurors’ exposure to stories and reports concerning the petitioner’s trial.

The Court finds no merit in this contention. In light of the discretion reposed in trial courts by Maryland Code, .Article 51, Section 22, there can be no presumption that ■ separation prior to the submission of the case to the jury has prejudiced the rights of the person standing trial. As the Court of Appeals stated in Midgett v. State, 223 Md. 282, 295-96 , 164 A. 2d 526 (1960), cert. denied, 365 U. S. 853 (1961), “the separation of the jury is permissible, in ■the discretion of the trial court, prior to submission, and . . . prejudice is not to be presumed from such separation ■simply because of the possibility of influence or contamination through outside contacts.” Accord, LaGuardia v. State, 190 Md. 450 , 58 A. 2d 913 (1948). As pointed out .in a thorough annotation entitled “Separation of jury in ^criminal case,” in 21 A.L.R.2d 1088 , 1117, supplementing 34 A.L.R. 1115 and 79 A.L.R. 821 , “it is regarded as settled” that where separation is within the discretion of the trial court, no prejudice can be presumed if the jury is allowed to separate. ⁴⁴³ Our refusal to make an assumption of prejudice in this case is buttressed by two additional considerations: first, as reflected in a joint stipulation made at the hearing on this petition, the petitioner’s counsel explicitly advised the trial court outside the jury’s presence that there would be no request that the jury be sequestered during the trial; secondly the trial court prior to each separation very carefully admonished the jury against discussing or reading about the case.

The courts in this State have adhered to the rule that there shall be no presumption of prejudice even where these additional factors were not present. In Graef v. State, 1 Md. App. 161, 170 , 228 A. 2d 480 (1967), for example, the defendant’s trial counsel strenuously objected to the separation of the jury. The Court of Special Appeals nevertheless affirmed the rule that prejudice must be demonstrated and is not to be assumed merely from the fact of separation where there is a possibility of influence or contamination from outside contact. On the other hand, where trial counsel does consent to separation, it is especially clear that the defendant has the burden of showing prejudice.

In Near v. Commonwealth, 202 Va. 20 , 116 S.E.2d 85 (1960), for example, the defendant in a murder prosecution consented to separation, and the court accordingly held that there could be no presumption of prejudice and that the defendant would have the burden of showing actual harm. An analogous rule prevails in federal courts, where a defendant’s right to have a jury kept together may be waived or lost due to failure to object to the jury’s separation. Stern v. United States, 219 F. 2d 263 (4th Cir. 1955). Maryland Code, Article 51, Section 22 does not explicitly require that the trial court admonish the jury to observe silence and avoid outside contacts at each separation during the trial, and the Court of Appeals has adhered to the requirement that the defendant demonstrate prejudice even where the trial court at several recesses has failed to give an appropriate caution or admonition.

E.g., Midgett v. State, 223 Md. 282 , 164 A. 2d 526 (1960), cert. denied, 365 U. S. 853 (1961). In the instant case, as ⁴⁴⁴ indicated above, the trial court at each separation gave thorough and painstaking admonitions to the jury. At the conclusion of the first day’s session, during which the court and counsel participated in the selection of a jury, the court admonished the jury as follows: “Members of the jury, we are going to stop now for the day. We have two alternate jurors to be selected tomorrow.

We ask that you meticulously follow the following instructions that we are going to give you. You are not to talk to anyone about the case. By that I mean your families, or anyone else. You are to talk to no one.

You are to allow no one to talk to you about it. You are not to get close enough to anyone that might be discussing it. You are not to read any newspaper accounts whatsoever. You are not to watch any accounts that may appear on television nor are you to listen to any radio accounts concerning this.

When I say that, I mean in the very broad sense, whether it happens to be the local newspaper, the local radio station, or from any other source, such as Baltimore or Washington newspapers or television accounts or from any source. You are not to talk to anyone about or allow anyone to talk to you about it or are you to get close enough to anyone that might be discussing it. You are to read no accounts or listen to any accounts nor to view any accounts. If you will follow these instructions meticulously—and when I say not to talk to anyone, I want to impress upon you not to discuss it with members of your family — with your wives or husbands or children or anyone whatsoever.

That would encompass all that. And we will begin tomorrow morning at 9:30. When you arrive tomorrow morning or whenever you do arrive, if it is early or what, go immediately to the jury room and do not remain in the corri ⁴⁴⁵ dors or downstairs. When you come on the courthouse grounds, go immediately to the jury room and wait until we send for you.

Mr. State’s Attorney, any further instructions you want to give ? ROTHENHOEFER (State’s Attorney) : Nothing further, Your Honor. COURT: Mr. Hargrove ? HARGROVE (Defense Counsel) : Nothing further, Your Honor.” (Tr. at 116) Throughout the trial similar admonitions were given to the jury.

(See, e.g., Tr. 166, 221, 275-76, 824-25, 409, 427, 476, 518, 544-45). Where such admonitions are given, courts in Maryland insist on a showing of prejudice even where the counsel for the defendant can demonstrate to the court that newspaper accounts which could be prejudicial to the defendant’s case are in circulation. In Graef v. State, 1 Md. App. 161 , 228 A. 2d 480 (1967), for example, the Court noted, after citing an admonition similar to that given in the instant case, that the defendant had made no showing that the articles were actually prejudicial, nor that any of the jurors had read such articles, nor lastly that these articles or any other publications had had any influence upon any single juror. The same is true in the instant case.

We therefore conclude that the jurors adhered to the stern admonition given by the trial court and that consequently the defendant suffered no prejudice on account of the jury’s separation in the course of trial. Even if we were permitted under the applicable Maryland law to infer prejudice from the fact of separation in a widely publicized capital case, such an inference would not be appropriate on the basis of the record before us. Unlike the publicity which surrounded the trial in Sheppard v. Maxwell, 384 U. S. 333 (1966), a case strongly relied on by the petitioner, the publicity in the instant case did not include prejudicial matter which had not been introduced into evidence. In the Sheppard case on the ⁴⁴⁶ other hand, many of the stories in the five volumes of clippings regarding the case involved matters which the-prosecution made available to both local and national news media without securing their admission into evidence.

The Sheppard case is further distinguishable in. that the trial judge in that case allowed the press to inject a carnival or circus atmosphere into the court proceedings. A press table running the entire width of the-courtroom was set up inside the bar. Members of the press, radio and televison were allowed to congregate in unlimited numbers and were completely unrestrained in their news gathering activities. The jurors in that case-were given woefully inadequate directions on their conduct during recesses — directions which were advisory rather than mandatory in tone, and which were so lightly treated by the jurors that they granted members of the-press corps expansive interviews disclosing the testimony that had been heard by them in the course of the trial.

The trial in the case of Marshall v. United States, 360 U. S. 310 (1959), also cited by petitioner, was marked by similar abuse. Highly prejudicial matters, ruled inadmissible at trial, were published in the press, and the record' disclosed that the jurors had read them. The instant case is far different. The decision to allow the jury to separate came only after the Court, having-already carefully considered a pre-trial motion for removal from Frederick County, took great pains on voir dire examination to evaluate the nature of the publicity that had surrounded and was likely to surround the petitioner’s trial, and satisfied itself that the jurors eventually chosen were not those who would form an opinion regarding the guilt or innocence of the accused on the-basis of newspaper or other reports.

Even if the jurors-in the instant case did not strictly adhere to the